Marc Clauson of Cedarville University
Signs of its importance can be seen before the American republic existed. But the U.S. Constitution began an era of genuine freedom beyond mere granted tolerance — it became a right.
But what did the phrase “Congress shall make no law … prohibiting the free exercise thereof (of religion) …” mean?
More than 200 years of jurisprudence has failed to provide a truly satisfactory answer. At one time, for example, it was considered valid for states to restrict Roman Catholic education.
After a long period during which the Supreme Court struggled with religious freedom cases, many believed that problem had been solved in the 1991 case of Unemployment Division v. Smith.
But many others saw that case as fatally flawed, and a movement among the states and Congress arose to protect free exercise more fully through laws. Thus we saw Religious Freedom Restoration Acts passed by a good number of states in the 1990s.
But the issues wouldn’t go away.
In fact, the situation is more complex today, even though the Supreme Court has held that it will apply “strict scrutiny” (a more critical look at state actions curtailing freedom) to such cases. The list is large — gay marriage; for-profit companies desiring to opt out of Obamacare for religious reasons; Catholic orders desiring the same, arguing they would be complicit in abortion otherwise; the baker refusing to make specially designed wedding cakes for same-sex couples; conscience rights claims arising over public organizations’ orders to perform an act that violates the person’s religious scruples; and a variety of other cases.
Where are we and where are we going?
The future of religious freedom is uncertain.
However, religious Americans do have freedoms left, even if the courts don’t satisfy. One can invoke a Religious Freedom Restoration Act if his or her state has one.
Ohio does not, but it has a strong constitutional protection, as some other states do. The Civil Rights Act (Title IX) contains explicit exceptions for religious freedom.
Other statutes also provide religious exemptions. Statutes are changeable, true, but for now they are barriers from secular encroachment. And the Supreme Court has shown no inclination thus far to eviscerate the First Amendment.
But in the end, I believe it must be a cultural consensus by which we will agree, tacitly at least, to freedom to practice and believe as one wishes, within the very broad limits of what we all agree represent the minimal but sufficient government actions that protect us all.
This is at least mutual toleration, but ideally mutual consideration for all on both sides of an issue. I would rather not have to rely on a court to decide.